Springs International Hotel Limited v Tuhaise (Civil Application 47 of 2023)

Court of Appeal · [2023] UGCA 161 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for a temporary injunction / stay of execution pending an intended appeal

Decision

Application for stay of execution / temporary injunction dismissed with costs; interim order vacated

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court dismissed an application styled as a temporary injunction but treated as a stay of execution pending an intended appeal. The preliminary objection that the Notice of Appeal was filed out of time was dismissed because the respondent failed to prove the duration of the Christmas vacation under the Court of Appeal Rules. On the merits, the applicant failed to place any evidence before the court establishing a prima facie case or likelihood of success of the intended appeal, failed to demonstrate irreparable damage or that the appeal would be rendered nugatory, and the balance of convenience favoured the respondent who held the judgment. Counsel's submissions are not evidence.

Facts

The respondent sued the applicant in the Chief Magistrate's Court of Mengo and obtained judgment in October 2014. The applicant's appeal to the High Court (Civil Appeal No. 41 of 2014) was dismissed by Hon. Lady Justice Margaret Oguli Oumo on 15 December 2016, with the decretal award increased. The applicant filed a Notice of Appeal on 18 January 2017 and requested typed proceedings, but took no further steps to prosecute the appeal for some six years. After the respondent commenced execution, the applicant filed an earlier application for stay (Misc. Application No. 468 of 2017) which was dismissed with costs. The applicant then brought the present application seeking to stay execution pending an intended appeal to the Court of Appeal. The Notice of Motion did not cite the legal provisions under which it was brought, and the supporting affidavit failed to attach the Notice of Appeal or any evidence of imminent execution or of the appeal's prospects.

Issues

Whether the Notice of Appeal was filed out of time so as to render the application incompetent.
Whether the applicant established a prima facie case of its right of appeal or likelihood of success.
Whether the applicant would suffer irreparable damage or the appeal would be rendered nugatory if a stay was not granted.
Where the balance of convenience lies.

Orders

The application is dismissed.
The interim order entered by consent on 24 March 2023 in Misc. Application No. 44 of 2023 is vacated.
The costs of this application are awarded to the Respondent.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Law in the Court of Appeal

An application to stay execution, stay proceedings or grant an injunction pending appeal in the Court of Appeal is governed by rule 6(2)(b) of the Judicature (Court of Appeal) Rules Directions, not by the Civil Procedure Act or Civil Procedure Rules which govern procedure in the High Court.

Civil Procedure — Stay of Execution — Conditions for Grant

To obtain a stay of execution an applicant must establish that the appeal has a likelihood of success or a prima facie case of its right of appeal, that it will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, and, failing those, that the balance of convenience lies in its favour.

Civil Procedure — Stay of Execution — Evidence — Submissions Not Evidence

Submissions of counsel are not evidence; an applicant for a stay must place material before the court, such as a draft memorandum of appeal, demonstrating the likelihood of success, irreparable damage and imminent execution, and arguments in written submissions cannot substitute for such evidence.

Civil Procedure — Notice of Appeal — Computation of Time — Christmas Vacation

Where a party alleges that a Notice of Appeal to the Court of Appeal was filed out of time, it must prove the duration of the Christmas vacation as determined by the Chief Justice under the Court of Appeal Rules, since rule 4(e) excludes the vacation period from the computation of time; failure to prove that period defeats the objection.

Legislation cited (13)

Civil Procedure Act s.98
Judicature Act s.33
Civil Procedure Rules Order 22 rule 23
Civil Procedure Rules Order 22 rule 26
Civil Procedure Rules Order 52 rules 1 and 3
Civil Procedure Rules Order 13 rule 6
Civil Procedure Rules Order 17 rule 4
Civil Procedure Rules rule 51(4)
Judicature (Court of Appeal) Rules Directions rule 6(2)(b)
Judicature (Court of Appeal) Rules Directions rule 76(1) and (2)
Judicature (Court of Appeal) Rules Directions rule 4
Judicature (Court of Appeal) Rules Directions rule 21(1)
Judicature (Court of Appeal) Rules Directions rule 72

Cases cited (9)

Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
Hon. Theodore Ssekikubo v Attorney General (Constitutional Appeal No. 3 of 2013)
Hon. Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 6 of 2013)
Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
Kiyimba Kaggwa v Abdu Nasser Katende [1985] HCB 43
Uganda Development Bank v ABA International & Others (Miscellaneous Application No. 568 of 2010)
The Administrator General (Through the Lawful Attorney Kyomuhendo Jolly Christine) vs National Social Security Fund & 2 others
Gashumba Maniraguha v Sam Nkundiye (Civil Application No. 24 of 2015)
Osman Kassim v Century Bottling Company Ltd (Civil Appeal No. 34 of 2019)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.